McClendon v. State, 96-2545
| Decision Date | 10 March 1997 |
| Docket Number | No. 96-2545,96-2545 |
| Citation | 689 So.2d 412 |
| Parties | 22 Fla. L. Weekly D663 Gary Mack McCLENDON, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Nancy A. Daniels, Public Defender; P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
Robert A. Butterworth, Attorney General; Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
Gary McClendon (McClendon) appeals, arguing that his judgment must be corrected to reflect that his carjacking is merely a first-degree felony, rather than a first-degree felony punishable by life (PBL). We agree.
McClendon negotiated a plea 1 of guilty to, and was adjudicated guilty of, carjacking (count one), attempted kidnapping (count two), and attempted kidnapping of children under age thirteen (counts three and four). McClendon was sentenced as an habitual violent felony offender, based on predicate May 1989 convictions for possession of a firearm by a convicted felon and aggravated battery, 2 to forty years in prison. Fifteen of these years are mandatory minimum years of imprisonment imposed for count one, with ten concurrent mandatory years for each of counts two through four. McClendon expressly agreed to a fifteen-year mandatory term, and expressly stated that he understood that under present law the fifteen-year mandatory term is irrelevant because he must serve eighty-five percent of his sentence, that is, thirty-four years. Carjacking while armed is a first-degree felony PBL. § 812.133(2)(a), Fla. Stat. (1995).
Carjacking while unarmed is merely a first-degree felony. § 812.133(2)(b), Fla.Stat. (1995). McClendon's judgment reflects conviction of a first-degree felony PBL; the information however omits any allegation that McClendon was armed with a deadly weapon during the carjacking. The State correctly concedes that McClendon's judgment must be corrected to reflect merely a first-degree felony, rather than a first-degree felony PBL. This ministerial change will not change McClendon's ultimate sentence, because McClendon was sentenced as an habitual violent felony offender. § 775.084(4)(b)1, Fla.Stat. (1995) ().
McClendon need not be present for the correction of his judgment. Sinks v. State, 661 So.2d 303, 304 (Fla.1995) (...
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Harris v. State, 1D00-898.
...following incarceration), or cures a defect in the underlying judgment that does not affect the sentence, see McClendon v. State, 689 So.2d 412, 413 (Fla. 1st DCA 1997) (correcting judgment to reflect that offense was first degree felony rather than first degree felony punishable by life), ......
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Morris v. State
...a firearm or deadly weapon during the carjacking. See Deleon v. State , 66 So.3d 391, 394–95 (Fla. 2d DCA 2011) ; McClendon v. State , 689 So.2d 412, 413 (Fla. 1st DCA 1997). The maximum penalty for a felony of the first-degree is thirty years under section 775.082(3)(b), Florida Statutes (......
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Mathis v. State, 97-2447
...Statutes (1993). We note that it is not necessary for the defendant to be present for this ministerial correction. McClendon v. State, 689 So.2d 412 (Fla. 1st DCA 1997). AFFIRMED and COBB and W. SHARP, JJ., concur. ...